Alabama Great Southern Railroad v. Richie , 99 Ala. 346 ( 1892 )

McCLELLAN, J.

Bichie prosecutes this action against the Alabama Great Southern Bailroad Company claiming damages for personal injuries suffered by him while in the employment of defendant and in the discharge of his duties as a brakeman. The averment is that these injuries resulted from the wrong and negligence of a certain engineer in the employment of the defendant and, at the time and place of the accident, in charge and control of an engine attached to the train on which plaintiff was a brakeman or, to be more specific, it is alleged that at the time and place mentioned the plaintiff and the conductor and engineer of the train were engaged in taking out of the train and leaving on a side track certain freight cars, and that “whilst so engaged, it became and was the duty of plaintiff to go and be between two of said freight cars for the purpose of uncoupling the same; and the plaintiff in the line of his duty accordingly did go between said cars, and whilst there, that is between the cars aforesaid, he, the said engineer, did wrongfully and negligenty drive and propel his said engine and cars to, against and upon the said plaintiff, thereby, then and there, catching and crushing the arm of said plaintiff between two of said freight cars, whereby plaintiff sustained great loss,” &c. This is the only averment of negligence to be found in the complaint. Evidence was introduced by the plaintiff tending to show that the train, from which it was his duty to uncouple the last or rear two cars, was when he set about the performance of this duty standing still on a heavy up grade, that because of this grade the connections or couplings between the cars were taught, that is that the cars were separated as far as the links would allow them* to be ; and that in order for him to pull the pin out of the link which connected the cars he was to uncouple with that next in front, it was necessary “for the engineer to give him what is called ‘the slack,’ that is to run the cars back some so as to loosen the links in order that the pin might be drawnthat he gave the engineer a signal to do this; and his theory is, that the engineer propelled the cars back with too much force, so that after the slack had reached the link from which he was to draw the pin, the cars still attached to the engine went unnecessarily far down the grade, and when he was in the act of laying the pin down on the draw-head of the car in front, it overtook the detached car, and their dead-woods came together and, catching his arm between them, inflicted the injuries for which he sues. The evidence also tended to show that the cars on this grade had to be held in position, and were so held on this occasion, by the engine on which the brakes or steam jam had been applied, that when the engine was released from its brakes, and allowed to run of its own motion down the grade, the cars would all move at the same time and together, and hence that no slack could be given in this way, but to that end it was necessary to give the engine steam and force the forward cars back faster then they would roll of themselves, and in doing this slack would be given at each successive coupling as the greater momentum of the engine reached it. This was the mode adopted to give slack at the point of the intended uncoupling- There was conflicting evidence, or inference at least, as to whether this jamming back of the cars was necessary in this instance, and also, conceding such .jamming in some degree to have been necessary, as to whether it was not unnecessarily hard; plaintiff’s evidence fending to show that it moved the cars at which he was engaged about two' car lengths down the grade, when a movement of a foot and half only could have been made and would have been sufficient, or, as he expresses it, “the slack of a foot and a .half would have been plenty to have come back at that time.” The question thus being whether the engineer was negligent in jamming the cars too hard and too far down the track, the plaintiff was allowed, against defendant’s objection, to prove that there was no brakeman on the train at the time, the others as well as plaintiff being employed about the switching; and also against defendant’s objection, that, “in a place of this kind, where the car [grade] was very heavy, the train of cars very long, and the train was a very heavy train,” if the brakemen had been at the brakes there would have been no difficulty “by putting on the brakes, and by the use of the engine, to stop the train at any point.” We are unable to see that this evidence, that if brakemen had been at the brakes, they could have promptly stopped the train, can possibly perform any other office in this case than as tending to show that the defendant through its agents was negligent in not having brakemen on the cars at that time and place; that but for this negligence, the train could and would liave been stopped before the dead-woods came' together crushing plaintiff’s arm, and hence, that in consequence of this negligence, which is not averred in the complaint, the defendant is liable, and the jury should so find. The fact that brakemen, if they had been in position, could have stopped the train has no tendency toward proving,the alleged negligence of the engineer. It may have been proper to show the fact that the brakemen were not at the brakes, or that the car brakes were not relied on or used in this movement of the train, for the purpose of emphasizing before the jury that whatever was done or attempted to be done in moving and stopping the train was done or attempted by the engineer, and that, therefore, whatever was wrong or negligent in that behalf must have been due to the wrong or want of care and diligence of the engineer, and it was nowhere [in the case pretended that the brakemen were in their places or that the brakes on the cars were resorted to; but to show that had they been there the train could have been stopped short of the accident was to show that somebody in defendant’s employment was negligent in not having them there, and serves to inject into the case an issue of negligence vel non of which there is no hint in the pleadings. The court erred in the admission of this evidence.

We have considered the evidence in this record with great care with reference to the inquiry whether it involves any tendency to show negligence on the part of the engineer in the premises. It would subserve no good end to discuss it in detail, and we will content ourselves in this connection witb the statement of our conclusion, arrived at witb some difficulty, and entertained witb more misgivings as to its correctness than could be desired, tbat there is some evidence tending to show tbat tbe engineer was negligent to go to tbe jury. On tbe other band, there is unquestionably a tendency of tbe evidence to show tbat tbe plaintiff himself was negligent and tbat, assuming tbe negligence of tbe engineer, tbe want of due care and diligence on tbe part of tbe plaintiff, as shown by this aspect of tbe testimony, contributed proxiinately to tbe injury sustained by him.

It being thus with the jury to find either tbat tbe engineer was or tbat be was not negligent, or, finding tbat be was negligent, to find further tbat plaintiff was not in tbe exercise of tbat prudence and diligence which a man of ordinary care and caution would have exercised under tbe circumstances; and if their conclusion was tbat both parties were guilty of wrong or negligence contributing proximately to tbe disastrous result, their duty was to return a verdict for tbe defendant, unless it was open to them, on tbe testimony, to further believe and find tbat tbe engineer knew or bad reason to believe tbat tbe plaintiff was exposed to tbe peril from, which tbe injury resulted, and failed, after be bad this knowledge or reason to believe tbe fact, to exercise tbe care and diligence which a man of ordinary care and diligence would have exercised in tbe premises to save tbe plaintiff harmless in spite of bis own want of care. Such failure under tbe circumstances hypothesized is deemed in tbe law, as frequently declared by this court, tbe equivalent of that indifference to threatened damnifying results, tbat wantonness, willfulness or conscious wrong, for injuries attributable to which tbe plaintiff may recover notwithstanding bis own contributory negligence.

Yery many of tbe rulings of tbe trial court proceeded, and can be sustained only, on tbe assumption that there was evidence in this case tending directly or through inference to show that tbe engineer witb a knowledge of plaintiff’s peril failed to exercise due care and diligence to save him from tbe consequences of bis own negligence. Tbe assumption is, in our opinion, unsurported and gratuitous. We are unable to find any such evidence in this record. There is no testimony which affords even an inference tbat tbe engineer ever knew or bad reason to believe tbat tbe plaintiff was exposed to tbe danger from which be suffered tbe injuries counted on until after those injuries bad been sustained. What be did know, and all that he knew or had reason to believe, was that the plaintiff was between the ears. The danger incident to being between the cars simply was not the source of plaintiff’s hurt. So long as the dead-woods were in tact — and they were so throughout the occurrences involved here — the plaintiff was not endangered by any thing the engineer did or omitted to do having relation merely to the plaintiff’s presence there. Within the lines of the cars and between them there was, as against any thing that happened on this occasion, an absolutely safe piace for plaintiff tp be. There was also another place between the cars which, under any and all circumstances when the cars were moving or about to move, is infinitely more dangerous than the first mentioned ; and it was from the peril incident to the plaintiff’s being in this more dangerous place that the injuries ensued. Though between the cars, plaintiff would not have been hurt at all, but for being in this particular place of especial danger between them. If it was plaintiff’s duty to be between the cars, it was equally his duty not to put himself at that spot between them at which the dead-woods came together. And it being the plaintiff’s duty to keep his person free from the point of contact between these dead-woods, and a duty the performance of which was prompted by every sense and instinct of self preservation under the circumstances shown here, and which, for ought that the engineer could or did know, was entirely feasible and practical of performance, the engineer had a right to assume that it would be performed, and, of consequence, that it would not endanger plaintiff for him to move the train as he did move it, and was not even probably necessary to the conservation of plaintiff’s safety that he should do any thing which he omitted to do or omit any thing which he in fact did; it being perfectly manifest that had plaintiff’s person been outside of the dead-woods between the cars, as any reasonable man knowing he was in there would have supposed it to be, the conduct of the engineer would have involved no injury to him.

This case is essentially unlike the case of Louisville & Nashville R. R. Co. v. Watson, 90 Ala. 68, and Hissong v. Richmond & Danville R. R. Co., 91 Ala. 514, upon which reliance is had by the appellee. In Watson’s Case the engineer not only knew that the plaintiff was between the cars, but there was evidence from which the jury might have inferred that he knew or had reason to believe plaintiff’s hand was between the bumpers of the cars — the draw-heads, which also performed the functions of dead-woods — and with this knowledge caused the engine to “jump back” — the space between the bumpers being only a few inches — so suddenly and with such force as to allow no time for plaintiff to extricate himself. There is no such evidence here — that the engineer knew or had any reason to believe that plaintiff’s arm was between the bumpers at all — and hence none of knowledge or reasonable belief on his part that plaintiff was in the perilous position from which alone he suffered. The same is substantially true of Hissong’s Gase. There the plaintiff had in effect informed the engineer that the work he was to do between the cars could not be done while they were in motion. The engineer accordingly stopped the train, and the plaintiff went between the cars, and while working at the coupling, supposing, as he had a right to do, that the train would not move until he so signalled the engineer, and acting, as the jury might have inferred, in a manner that was safe only on the assumption of the train remaining at rest, the engineer started his engine and moved the car over plaintiff’s person. Having been requested to stop that the work might be done, after an effort to do it while his engine was in motion had failed, the clear implication to the engineer was that plaintiff had to be and was in a position which any movement of the train would render perilous, and he had no right to assume the safety of it. And in Hissong’s Gase, as in Watson’s, the peril which culminated in the injury complained of was incident to the position in which the engineer knew, or had reason to believe, the plaintiff to be when he moved the train. Here, as we have seen, quite the reverse is true. The peril of this plaintiff was incident to a particular position which it was plaintiff’s duty to avoid, which, so far as the engineer could know or have any reason to believe, there was no necessity or occasion for him to assume, and which there was nothing to suggest plaintiff’s occupancy of to the engineer at the time he set the train in motion, or at any time while it was in motion. We are unable to say that the evidence affords any f[round to impute to him such knowledge or reasonable beief as to the peril of plaintiff’s position as that his subsequent conduct in the movements of the engine involved a, want of ordinary care with reference thereto. And if this case is tried again on the evidence before us, but two issues will arise, namely, first, whether the engineer was originally negligent; and second, whether the plaintiff was guilty of contributory negligence, in allowing his arm to get between the dead-woods.

What we have said last above will suffice to indicate the grounds of our opinion that many of the charges refused to the defendant should have been given, and also the particular charges referred to.

The danger to plaintiff from putting his arm where it was caught between the dead-woods was not necessarily obvious to him, that is, the jury might have found that it was not, if they believed there was a second lurch of the train against the car that had been uncoupled, and hence charge ■ 14 was properly refused.

Charges 15 and 17, requested for defendant, present questions that need not arise on another trial.

Charge 18 assumes that an engineer can not be negligent in operating his engine, if he does so in prompt and careful compliance with the signals of the conductor. This is not true where the act commanded, however performed, would be a negligent one, and it was not for the court to assume, as the giving of this charge would have involved its doing, that the testimony of the conductor, to the effect that the signals given by him on the occasion in question were the proper signals to be given and commanded the doing of proper acts by the engineer, was true.

The 19th charge of defendant’s series was well refused. Its statement of the general proposition of law is, of course, sound; but we are not prepared to say that the rule stated is applicable to the facts therein hypothesized. If, under the circumstances, the plaintiff had time and occasion to see and comprehend that the safe way to lay the pin on the draw-head was to stand on the cross-tie, and had time to thus adjust himself, he should have done so; but these considerations are not hypothesized in the instruction as framed.

Charge 20 is in the nature of an argument, and was well refused on that ground.

Of the charges given for plaintiff that numbered 8 may have involved a tendency to mislead as to the true interpretation of the rule of the defendant company, which was put in evidence, but is not otherwise objectionable; and that numbered 14 is abstract.

The rulings on the admissibility of testimony are free from error, except in the particular considered in the outset of this opinion.

Reversed and remanded.